Ed Whelan Outs an Anonymous Law Professor/Blogger (Updated Again)

by Kevin Jon Heller

I loathe anonymous blogging and anonymous commenting. I think that, in the absence of a compelling reason to remain anonymous, people who take provocative positions and vehemently criticize others should have the courage to do so openly, under their own name. That’s why I respect someone like David Bernstein, no matter how much I disagree with him.

That said, I understand that some people do, in fact, have compelling personal or professional reasons to blog anonymously. I question whether someone in that situation should blog at all; I think it would be better for them to wait until they can do so openly. Yet that is their choice, not mine; I believe that every blogger has the right to remain anonymous just as strongly as I believe that they should go public. I have never “outed” anyone, blogger or commenter, and I never would.

Ed Whelan, unfortunately, seems to believe that it is appropriate to out bloggers who wish to remain anonymous. Whelan has just outed “Publius,” a leading progressive blogger at Obsidian Wings, because Publius had the temerity to criticize one of his blog posts. Here is what Publius, who is a new and untenured law professor at South Texas College of Law, has to say about the situation — and about his decision to blog anonymously:

So there you have it – I’ve been officially outed by Ed Whelan. I would never have done that to my harshest critic in a million years, but oh well.

And to be clear – the proximate cause was that Whelan got mad that I criticized him in a blog post. More specifically, he’s mad that Eugene Volokh made him look rather silly – and he’s lashing out at me for pointing that out, and publishing my name.

[snip]

But anyway, he’s right – my name is John Blevins. I recently joined the faculty at South Texas College of Law in Houston (both of which I love) after practicing for years in DC. I’m also now a recent convert to the Houston Rockets, and am enraged that Chuck Hayes doesn’t shoot more.

I thought about ignoring the whole thing – but some of you have been with me for 5 years now, so I thought you all deserved an explanation.

As I told Ed (to no avail), I have blogged under a pseudonym largely for private and professional reasons. Professionally, I’ve heard that pre-tenure blogging (particularly on politics) can cause problems. And before that, I was a lawyer with real clients. I also believe that the classroom should be as nonpolitical as possible – and I don’t want conservative students to feel uncomfortable before they take a single class based on my posts. So I don’t tell them about this blog. Also, I write and research on telecom policy – and I consider blogging and academic research separate endeavors. This, frankly, is a hobby.

Privately, I don’t write under my own name for family reasons. I’m from a conservative Southern family – and there are certain family members who I’d prefer not to know about this blog (thanks Ed). Also, I have family members who are well known in my home state who have had political jobs with Republicans, and I don’t want my posts to jeopardize anything for them (thanks again).

All of these things I would have told Ed, if he had asked. Instead, I told him that I have family and professional reasons for not publishing under my own name, and he wrote back and called me an “idiot” and a “coward.” (I’ve posted the email exchange below).

So there you have it – I’ve been successfully pseudonymous since the Iowa caucuses in 2004. During that time, I’ve criticized hundreds of people – and been criticized myself by hundreds more. But this has never happened.

Whelan’s decision to out Blevins is simply unacceptable. As Dan Drezner found out, untenured blogging can be hazardous to your professional health. That clearly did not matter to Whelan, who knew full well — as the emails between Blevins and Whelan indicate — that Blevins wanted to remain anonymous. Indeed, it seems clear that Whelan only outed Blevins in order to cause him personal and professional pain. Here is Whelan’s final word to Blevins, referring to another blogger’s description of him (not Blevins’) as a “legal hitman”:

Now who’s the hitman, you coward and idiot.

Blevins has written sensitively and intelligently about torture, terrorism, and national security for a number of years. I can only hope that this horrific incident does not cause him to abandon blogging. If it does, the blogosphere will be that much the poorer.

I’m very sorry this happened, Professor Blevins. You deserved better.

UPDATE: Whelan’s classless act has managed to do something few others issues ever have: unite the right- and left-wing blogospheres. Political Byline collects a number of posts, right and left, criticizing Whelan here.

UPDATE 2: Lest anyone think Whelan has a sense of shame, his response to the bipartisan outrage at his actions is here. His only regret seems to be that he didn’t out Publius earlier. The most revealing part of the response, though, has to be this statement of “principle” (my emphasis): “setting aside the extraordinary circumstances in which the reason to use a pseudonym would be compelling, I don’t see why anyone else has any obligation to respect the blogger’s self-serving decision.” As the emails linked to above make clear, after Blevins told Whelan that he wished to remain anonymous for personal and professional reasons, Whelan made absolutely no attempt to determine whether those reasons satisfied his “extraordinary circumstances” test. He simply and joyfully outed Blevins.

UPDATE 3: To his credit, Whelan has now apologized:

On reflection, I now realize that, completely apart from any debate over our respective rights and completely apart from our competing views on the merits of pseudonymous blogging, I have been uncharitable in my conduct towards the blogger who has used the pseudonym Publius. Earlier this evening, I sent him an e-mail setting forth my apology for my uncharitable conduct. As I stated in that e-mail, I realize that, unfortunately, it is impossible for me to undo my ill-considered disclosure of his identity. For that reason, I recognize that Publius may understandably regard my apology as inadequate.

16 Responses

Just another fascist doing what fascists do — these people make me want to vomit.

And the good guys — people like you Kevin — need to understand that these people are waging war on the law itself. They aren’t your colleagues or friends, they are enemies of humanity and reason, new-age Nazis.

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While not ordinarily a defender of Whelan and his ilk, on this matter I have to side with Whelan.

1. Whereas Anonymous Liberal and Publius were public or quasi-public figures operating in the political blogosphere without explicitly shouldering the risk of personal and professional blowback, Ed Whelan’s name was attached to all of his posts. It makes sense, given those facts, that Whelan called Publius a “coward”.

2. Ed Whelan offered substantive criticism of the record of a judicial nominee; his opponents attacked his character with cheap, grade-school level psychoanalysis, uncharitable distortions, and petty ad hominems.

3. Ed Whelan has clerked for the Supreme Court and worked for the Executive branch, so he has a firsthand view of how policy is made and an accurate understanding of what public officials consider proper. The critics attacking him, for the most part, are opinionated private citizens who post anonymously on the Internet.

4. When responded to substantively, Ed Whelan engages or adapts to criticism. Note how quickly Whelan modified his claims about policy considerations at the Court after Eugene Volokh, a respected former clerk and noted law professor, critiqued them. Had the rest of Whelan’s critics so limited themselves to the content and form of Whelan’s posts, perhaps his rejoinders would have reciprocated.

As a personal matter, I fail to understand the criticism of Whelan’s “outing” of Publius. What is the ethical argument in favor of Publius remaining anonymous while maintaining a public website that personally criticizes public figures in the course of discussing public affairs? Is there a moral argument in favor of trashing Ed Whelan’s reputation while selfishly preserving your own? Worse, given the shoddy legal reasoning behind Publius’ posts, I would think he ought to be ashamed of his attacks on Whelan. His posts most certainly do not inspire confidence that he is a high-quality law professor. One might have expected a law professor to expose holes in Whelan’s reasoning, demonstrate how one ought to properly argue, and use the free Westlaw/Lexis at his disposal to back up his claims. Instead we were treated to childish sniping.

Lastly, the notion that one not ought to punish one’s critics is ridiculous. If free speech means anything, it means protecting speech we hate and curing speech with more speech. Precisely for that reason, you should expect criticizing a person to result in hateful speech directed toward you. If Publius desired to remain anonymous, he should have kept his mouth shut.

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6.07.2009
at 10:33 am EST Anonymous

Ah, the irony: an anonymous commenter defending Whelan’s decision to out an anonymous blogger. You just can’t make this stuff up.

Personally, I think that anonymous blogging can allow thoughts/discussions/debates to make it out into the open where they otherwise might not — because of, as Professor Blevins writes, professional and/or personal sensitivities. We don’t all have the luxury of being able to have a public face, but the anonymity of the internet allows us to put forth our ideas, and join with vibrant discourse of the blogosphere.

Ya, well I say again: this is just another case of right-wingers doing what right-wingers do best.

And it’s time to wake up folks: these people need to be dealt with as what they are — the most deadly enemies the United States has. Look at the last eight years. Look at them trying to subvert the Obama administration, Look at them selling the same old lying excuses for murder, torture, and these pointless festering wars on everything in general and nothing in particular.

And above all, look at their absolute contempt for the law. These people are criminals, that is ALL that they are, and they should be dealt with accordingly.

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You’re completely confusing “pseudonymity,” posting under a pseudonym, and being perfectly well-known by that pseudonym, as countless writers do (was “Mark Twain” “anonymous”? with “anonymity,” being unknown.

Publius has posted for many years, and is a well-known blogger. There’s nothing whatever anonymous about his ID or his pseudonym.

“While not ordinarily a defender of Whelan and his ilk, on this matter I have to side with Whelan.”

“Lastly, the notion that one not ought to punish one’s critics is ridiculous. If free speech means anything, it means protecting speech we hate and curing speech with more speech. Precisely for that reason, you should expect criticizing a person to result in hateful speech directed toward you.”

I think the emphasized portions of the above quote demonstrate that Anonymous’ comment was satirical. I refuse to believe someone would seriously believe those things. What can I say, I’m charitable. Or, you know, not 4 years old.

Whelan’s outing didn’t tell me anything particularly relevant about Publius, but it did reveal an awful lot about Whelan. Specifically, that he’s a petty prick. And I write that as one who, on substance, tends to side with the prick.

6.07.2009
at 7:56 pm EST Ming the Meciless Siamese Cat

I agree that pseudonymous bloggers shouldn’t be outed (and they ARE different from anonymous bloggers/commenters) but there’s no need to try to cover up Blevins behavior—he didn’t merely criticize Whelan—he attacked him personally by claiming he was a ‘legal hitman’. Impugning somebody like that isn’t reasonable and legitimate criticism.

6.07.2009
at 11:33 pm EST agreewith

he attacked him personally by claiming he was a ‘legal hitman’

A personal attack is “you’re ugly and so’s your momma.”

Publius called Whelan a “legal hitman” in the context of asserting that Whelan’s posts on legal topics assert GOP talking points that Whelan knows to be poorly reasoned or invalid, and took the Whelan post critiqued by Eugene Volokh as an example. Publius presumed that Whelan was too intelligent to believe what he wrote in the critiqued post, and inferred that Whelan’s posting it anyway made him a “legal hitman.”

I don’t think it’s an airtight analogy, but it’s not a personal attack; Publius had an argument to support it, and Whelan was free to demonstrate cases where he had taken positions on legal principle even where they collided with his ideological preferences. If, indeed, there are any such cases.

A Pyrrhic victory for Mr. Whelan- the cost in terms of his own integrity will far outweigh and outlast the somewhat petty and meaningless “win” he secured with this act.

And the name calling in the email prior to outing him? Really, Whelan? Sigh.

6.08.2009
at 4:05 pm EST KilgoreTrout XL

The debate, i.e. the ideas, is what should matter, not the personalities. If a good guy makes a bad point, the point is still bad; if a bad guy makes a good point, the point is still good. The personalities are just a distraction. And that is why pseudonyms are entirely valid and have been useful since “Publius” wrote the Federalist Papers and probably even as far back as Romans and Greeks.

6.09.2009
at 8:25 am EST FredP

I will just throw out the point that Hamilton and Jefferson, writing anonymously as Pacificus and Helvidius, engaged in one of the greatest, most informative debates in American legal history over the executive branch and war powers.

The late Democratic House Speaker Tip O’Neill once said “All politics is local.” But now, more than ever before, that needs to be adjusted to: “All politics is personal.”
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